Veterans Struggle to Gain Access to Medical Marijuana
Thirty-three states and the District of Columbia have enacted medical marijuana programs. Despite this expansion military veterans often face greater obstacles to gaining access to medical marijuana than other groups. Veterans suffer widespread health problems including chronic pain, traumatic brain injuries, and post-traumatic stress disorder at a rate higher than the general population. When veterans seek medical care from the federal Veterans Administration health system, they not only lack access to medical marijuana but may fear jeopardizing all federal benefits if they admit to personal use.[i] Notwithstanding the rapid spread of medical marijuana across the United States, many veterans report feeling left behind.[ii]
I. Military Veterans and Health Problems
A military veteran is defined as a person who previously served in the United States military. This group includes both wartime and peacetime veterans. There are over 20 million veterans currently living in the United States. The majority of these served during Vietnam or the War on Terror campaigns. Veterans are increasingly underrepresented in the legislative decision-making progress. The percentage of veterans serving in Congress declined from 81% in 1975 down to approximately 20% today.[iii]
Veterans face unique health risks as a result of their military service. The most obvious are physical wounds from gunshots, indirect fire, or improvised explosive devices. These wounds range from minor to catastrophic. Many of these injuries require ongoing medical care and pain management. Advances in battlefield medicine have resulted in fewer battlefield deaths, but also a larger proportion of veterans returning home with ongoing medical needs. Some military veterans are exposed to special chemical, environmental or biological hazards, such as Agent Orange in Vietnam or burning oil wells in Iraq.
Perhaps the most characteristic medical problem of veterans is post-traumatic stress disorder (“PTSD”). The VA estimates roughly 15% of Vietnam veterans currently suffer from PTSD, but as many as 30% have experienced PTSD at some point in their lives. About 12% of Desert Storm veterans experience PTSD, and between 11% to 20% of War on Terror (Operation Iraqi Freedom and Operation Enduring Freedom) veterans suffer from the disorder.[iv] By comparison, only about 3.5% of the general adult population suffers from PTSD. Combat stress is a common cause of PTSD, although some veterans suffer as the result of sexual assault while serving in uniform. Sexual assault in the military occurs at a higher rate than the general population.
PTSD was formerly known as “shell shock” or “combat fatigue” during the mid-twentieth century. Many patients with PTSD report having flashbacks or intrusive thoughts which result in involuntarily re-living past traumatic events. Other symptoms include; avoiding reminders, negative thoughts or feelings, and arousal and reactive symptoms.[v] The most common treatments for PTSD are cognitive behavioral therapy or selective serotonin uptake inhibitors (SSRIs) including Paxil, Zoloft, and Prozac.[vi] SSRIs have side effects including insomnia, drowsiness, nausea, dizziness, nervousness, agitation, dry mouth, headache, blurred vision, and sexual problems.[vii]
Veterans suffer from mental illness and suicide at a rate 22% greater than the general population. On average 20 veterans commit suicide every day and 6 of these will have recently used VHA services.[viii]
Other common health problems include tinnitus, hearing loss, and lower-back pain. Veterans may also suffer chronic pain resulting from injuries unrelated to combat including training injuries and auto accidents.
II. What is the VA’s Position of Medical Marijuana?
Because the VA is a federal agency it adheres to marijuana’s complete illegality as a Schedule 1 controlled substance.[ix] The VA position on medical marijuana is documented in VHA Directive 1315.[x] Although VHA Directive 1315 states that veterans must not be denied VA benefits solely due to participation in a state medical marijuana program, marijuana use must be entered into the patient’s electronic medical records.[xi] The VA cannot recommend or prescribe medical marijuana under any circumstances.[xii]
Nine million veterans are enrolled in the Department of Veterans Affairs (VA) healthcare program (VHA).[xiii] The VA has one of the lowest favorability ratings of any federal agency. Recent scandals such as Walter Reed hospital have brought to public view some of the challenges patients of VA medical care experience.
According to the VHA website, it is:
the nation's largest health care system, employs more than 306,000 full time health care professionals and support staff at 1,243 health care facilities, including 172 VA Medical Centers and 1,062 outpatient sites of care of varying complexity (VHA outpatient clinics).
VHA is the nation's largest provider of graduate medical education and a major contributor to medical and scientific research. More than 73,000 active volunteers, 127,000 health professions trainees, and approximately 15,000 affiliated medical faculty are also an integral part of the VHA community.[xiv]
A recent study by the American Legion suggests 22% of veterans are already using marijuana for medicinal purposes. 92% of veterans support research into medical cannabis and 83% of all veteran households support legalizing medical cannabis. 60% of respondents did not live in a state with medical cannabis.[xv] The VA reports about 60% of combat veterans and 50% of older veterans suffer from chronic pain, compared to 30% of Americans nationwide.[xvi] Many of these veterans are prescribed opiates for their chronic pain. A recent report from the National Institutes of Health found the rate of accidental poisoning mortality for VHA patients is twice that of the general population.[xvii]
Veterans may participate in state-level medical and recreational marijuana programs. However, they must pay for medical marijuana out of pocket. If veterans cannot afford healthcare outside of the VHA system, they may be financially incapable of participating in state-level medical marijuana programs. VHA treatment may require blood testing and urinalysis which can reveal marijuana use. There is anecdotal evidence the Lyons New Jersey Veterans Affair Medical Center in Somerset County is disregarding positive marijuana results from patients in New Jersey’s medical marijuana program.[xviii] Lyons is one of two VHA treatment facilities in New Jersey.
III. Currently Serving Military
Current members of the military are subject to the Uniform Code of Military Justice (UCMJ) and subject to monthly drug-testing.[xix] The Army’s Substance Abuse Program (ASAP) is detailed in AR 600-85. These regulations also cover members of the National Guard and Reserves who serve in states with medical marijuana programs. The UCMJ applies to members on the military at all times, including both on and off post and in and out of uniform. Failing a drug test can result in demotion, administrative actions, or an other-than-honorable discharge. A dishonorable discharge greatly reduces a veteran’s eligibility for federal benefits. The Department of Defense makes no exceptions for active or reserve duty personnel for medical marijuana use, even if such use is legal under applicable state laws. Unlike civilian courts, court-martial proceedings have broad discretion to administer judicial punishment including a bad conduct discharge, confinement, fines, and reduction in rank.
The use and possession of marijuana is prohibited under the UCMJ by Section 912a, Article 112a (10 U.S.C.S. § 912a):
(a) Any person subject to this chapter [10 USCS §§ 801 et seq.] who 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 aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.
(b) The substances referred to in subsection (a) are the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.[xx]
Many minor infractions involving marijuana possession are likely handled informally by unit commanders and senior non-commissioned officers on a case by case basis. Unit commanders may also administer Article 15 non-judicial punishment. The Army requires annual substance abuse briefings for all soldiers. Some commanders have suggested owning cannabis-related stocks can negatively affect their security clearance.[xxi]
United States v. Gonzales, No. ACM S32386, 2017 CCA LEXIS 522 (A.F. Ct. Crim. App. Aug. 2, 2017) is indicative of how military courts treat medical marijuana use by active duty servicemembers. In Gonzales a servicemember with a California medical marijuana card pled guilty to violating UCMJ Article 112a. He was sentenced to a bad-conduct discharge and sentenced to two months in confinement.
Servicemembers married to lawful medical marijuana patients may also face punishment under the UCMJ. Military courts have come to inconsistent conclusions when considering marijuana within the marital home. Cohabitating spouses are generally presumed to have control over marital property including the ability to consent to a search. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974), Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793 (1990). Different military courts have reached different conclusions regarding how broadly to apply constructive possession should be applied to particular facts. It is well established that military courts may use circumstantial evidence to establish guilt. United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004), United States v. Lewis, 51 M.J. 376, 380 (C.A.A.F. 1999), United States v. Caballero, 37 M.J. 422, 425 (C.M.A. 1993).
These determinations are extremely fact-specific and difficult to predict. One military court held that a large amount quantity of marijuana found in an on-base apartment may not be enough for a conviction if there is evidence the servicemember was “just a bystander.” United States V. Trevino, 50 C.M.R. 381 (U.S. A.F.C.M.R. 1975). A conviction requires clear and compelling evidence of guilt. The evidence instead indicated the marijuana was under the control of visiting family of the servicemember’s spouse:
Here, without dispute, the marihuana was discovered in the accused's apartment and the circumstances gave rise to an inference that it was being possessed with the intent to distribute the substance. However, if true, the accused's statement that the marihuana was not his and that he had nothing whatever to do with it, all of which was corroborated, constituted a complete defense to the offenses charged. By the terms of his explanation the accused was no more than a bystander who, by the force of circumstances, had knowledge of the presence of marihuana. In short, he just "happened to be where the action was." United States v Myers, 20 USCMA 269, 43 CMR 109 (1971). Possession, in the context of the offenses here charged, requires more than that; it "involves the exercise of dominion and control over the thing allegedly possessed . . . and it is not enough to place [an accused] in the presence of other persons having possession to import possession to him." United States v Myers, supra; see United States v Aloyian, 16 USCMA 333, 36 CMR 489 [**9] (1966).
United States V. Trevino, 50 C.M.R. 381 (U.S. A.F.C.M.R. 1975).
Likewise, in United States v. Grubbs, No. ARMY 20021404, 2004 CCA LEXIS 434 (A. Ct. Crim. App. Sep. 9, 2004) a defendant soldier’s guilty plea to on-post marijuana possession was set aside because the trial judge did not explain constructive possession involves a knowledge requirement. In Grubbs, the soldier admitted two grams of marijuana was found in his dresser, but he was not asked how it got there or how he knew the substance was marijuana. The soldier was still given a bad-conduct discharge, a reduction in rank, fined, and ordered to a period of confinement on other grounds.
In United States v. Corpening, 38 M.J. 605 (U.S. A.F.C.M.R. 1993) a soldier successfully challenged his court martial because all the elements of constructive possession were not proven. In Corpening marijuana was found in a car in which soldier was travelling, but this alone was not sufficient to prove constructive possession.
An accused may be convicted of wrongful possession of illicit drugs either by proof of actual physical control or by knowingly exercising dominion and control over the contraband, that is, "constructive possession." United States v. Wilson, 7 M.J. 290 (C.M.A. 1979). The mere presence of an accused on the premises where an illicit drug is found or his proximity to a proscribed drug is, of itself, insufficient to support a conviction based on constructive possession of the drug. Id. at 294; Moore v. United States, 429 U.S. 20 (1976); United States v. Gainey, 380 U.S. 63 (1975). The government must also establish that the appellant had the right to or was in a position to exercise dominion and control over the drugs. Wilson, 7 M.J. at 293.
United States v. Corpening, 38 M.J. 605 (U.S. A.F.C.M.R. 1993).
These rulings create considerable uncertainty for servicemembers married to lawful medical marijuana patients. At least some lawyers have concluded servicemembers face UCMJ punishment for holding medical marijuana for their spouse in an off-post marital home.[xxii] If members of the military are married to a spouse lawfully using medical marijuana the best course of action is to err on the side of caution. One option is for the spouse to withdraw from their state’s medical marijuana program completely. Another option is to store and consume medical marijuana exclusively at a separate location, although this creates potential logistical and public safety risks including impaired driving.
If medical marijuana is stored within the marital home, both spouses should ensure any marijuana is not in a common area, comingled with servicemembers property, or otherwise in an area under the servicemember’s exclusive control such as a dresser or container. The risk that a military court could use circumstantial evidence to prove a servicemember had constructive possession of a controlled substance is significant. Responsible attorneys should counsel military spouses of these risks and encourage proactive measures to prevent jeopardizing a military career and its associated benefits.
Active duty servicemembers and their families receive healthcare through the TRICARE system. TRICARE provides coverage for 9.4 million beneficiaries.[xxiii] TRICARE is a member organization in the Defense Health Agency and the Military Health System. Because TRICARE is a federal agency it adheres to the complete illegality of cannabis as a controlled substance under federal law.
IV. Proposals for Reform
Several veteran’s groups advocate for greater access to medical marijuana. These include Veterans for Medical Cannabis Access and the Veterans Cannabis Project.[xxiv] Representative Lou Correa (D-CA) stated he plans to introduce federal legislation to direct the Department of Veterans Affairs to research whether marijuana is a safe treatment for PTSD and other battlefield related-injuries.[xxv] Representative Correa sits on the House Veterans’ Affairs Committee.
In September 2018 a bill was introduced in Congress to legalize medical marijuana for veterans.[xxvi] Known as the Veterans Medical Marijuana Safe Harbor Act, the bill was unable to move forward.[xxvii] VA leadership has said it needs authorization from Congress to conduct research into medical marijuana.[xxviii] The Senate previously voted to support language to allow veterans to participate in state-level medical marijuana programs, but these proposals have not been enacted into law.[xxix]A draft bill to support VA research into medical marijuana became the first marijuana reform bill to clear congressional committee in May 2018.[xxx]
It is clear VA will not embrace medical marijuana prior to federal rescheduling, FDA approval, and/or action by Congress. Opponents point out the lack of scientific research as the biggest obstacle to the reclassification of marijuana on the federal schedule of controlled substances. In May 2019 the VA stated it opposes legislation encouraging medical cannabis research as long as it remains illegal under federal law.[xxxi]
Several New Jersey veterans are leading efforts to reform marijuana laws in the Garden State. Scott Rudder is the President of the New Jersey Cannabusiness Association and previously served in the New Jersey National Guard.[xxxii] Leo Bridgewater served multiple tours in Iraq and Afghanistan. Mr. Bridgewater testified before the New Jersey Assembly in favor of including PTSD as a qualifying condition medical marijuana.[xxxiii] Mr. Bridgewater also serves as National Director of Veteran Outreach for Minorities for Medical Marijuana.[xxxiv] New Jersey native and Navy veteran Matt Bellina successfully led the effort to pass federal “Right to Try” legislation for terminally ill patients.[xxxv] (Right to Try only includes medicines which have passed an FDA Phase 1 trial.)
New Jersey’s medical marijuana program offers a discounted registration fee for veterans. In response to Governor’s Executive Order No. 6, the State of New Jersey Department of Health lowered the fee to $20 for veterans and senior citizens. If federal legislation is passed allowing veterans access to medical marijuana, experts expect a sharp jump in enrollment in New Jersey’s program.[xxxvi] New Jersey’s proposed legalization bill envisions set asides to ensure at least 15% of licenses go to disabled veterans. (S2703/A New Jersey Cannabis Regulatory and Expungement Aid Modernization Act).
Veterans are more likely to suffer from chronic health problems than other Americans.[xxxvii] Many of these health problems may be difficult or dangerous to treat with traditional medicine including opiates and other pharmaceuticals. Although many veterans feel PTSD and other widespread veteran’s health issues could be better treated with medical marijuana, much more scientific research is required. Because many veterans rely on the VA for healthcare they encounter some of the greatest disincentives to participate in state-level medical marijuana programs. Veterans remain caught in the middle ground between states expanding medical marijuana programs and the regulatory inertia of the federal government.[xxxvii]
[i] Many thanks to Professor McNichol for his invaluable feedback during previous drafts of this paper. This paper is meant to be only a general overview of legal issues facing veterans and members of the military in states with medical marijuana programs. There are numerous other detailed issues on this subject worthy of scholarship and research, but these are outside the scope of this assignment. Some of these topics include; detailed analysis of recent scientific research, veteran’s access to CBD, restrictions on Second Amendment rights pursuant to participation in medical marijuana programs (roughly 50% of veterans are gun-owners), Drug-Free Workplace laws, the various competing proposals for reform at the federal level, military rules of civil procedure and evidence, marijuana use and security clearances, waiver requirements regarding enlistment and past marijuana-use, and the declining representation of veterans in Congress.
[ii] Travis Tritten, Retirees Unlikely to Face UCMJ Charges for Smoking Pot, Stars and Stripes (July 12, 2014), https://www.stripes.com/news/retirees-unlikely-to-face-ucmj-charges-for-....
[iii] M. Todd Hunter, The Cannabis Cure, Disabled American Veterans (November 6, 2018), https://www.dav.org/learn-more/news/2018/the-cannabis-cure/.
[iv] Kristen Bialik, The Changing Face of America’s Veteran Population, Pew Research Center (November 10, 2017), http://www.pewresearch.org/fact-tank/2017/11/10/the-changing-face-of-ame....
[v] How Common is PTSD in Veterans?, U.S. Department of Veterans Affairs, https://www.ptsd.va.gov/understand/common/common_veterans.asp.
[v] Ranna Parekh, What is Posttraumatic Stress Disorder?, American Psychiatric Association (January 2017), https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd.
[vi] Treatment for PTSD, Anxiety and Depression Association of America, https://adaa.org/understanding-anxiety/posttraumatic-stress-disorder-pts....
[vii] Selective Serotonin Reuptake Inhibitors, The Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/depression/in-depth/ssris....
[viii] Suicide Among Veterans and Other Americans, U.S. Department of Veterans Affairs (August 3, 2016), https://www.mentalhealth.va.gov/docs/2016suicidedatareport.pdf
[ix] VA and Marijuana – What Veterans Need to Know, https://www.publichealth.va.gov/marijuana.asp
[x] VHA Directive 1315: Access To VHA Clinical Programs For Veterans Participating In State-Approved Marijuana Programs, Department of Veterans Affairs Veterans Health Association (December 8, 2017), https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=5711.
[xi] “It is VHA policy that: a. VHA providers and/or pharmacists discuss with the Veteran marijuana use, due to its clinical relevance to patient care, and discuss marijuana use with any Veterans requesting information about marijuana; b. To comply with Federal laws such as the Controlled Substances Act (Title 21 United States Code (U.S.C.) 801 et. al.), VHA providers are prohibited from completing forms or registering Veterans for participation in a State approved marijuana program; and, c. VHA providers and/or pharmacists should discuss with patients how their use of State-approved medical marijuana to treat medical or psychiatric symptoms or conditions may relate to the Veterans participation in other clinical activities, (e.g., discuss how marijuana may impact other aspects of the overall care of the Veteran such as how marijuana may interact with other medications the Veteran is taking, or how the use of marijuana may impact other aspects of the overall care of the Veteran such as pain management, Post-Traumatic Stress Disorder (PTSD), or substance use disorder treatment).” Id. “4.g.(6). If a Veteran reports marijuana use and/or participation in a State-approved marijuana program to a member of the clinical staff, that information is entered into the “non-VA/herbal/Over the Counter (OTC) medication section” of the Veteran's electronic medical record following established procedures for recording non-VA medication use (see VHA Directive 2011-012, Medication Reconciliation, or subsequent policy document, VHA Directive 1108.08, VHA Formulary Management Process). If a provider discusses marijuana with a Veteran, relevant information must be documented in progress notes, and considered in the development or modification of the treatment plan.” Id.
[xii] “Each VA medical facility Director, or designee, is responsible for ensuring VA facility staff are aware of the following: (1) Clinical staff may discuss with Veterans relevant clinical information regarding marijuana and when this is discussed it must be documented in the Veteran’s medical record. Veterans must not be denied VHA services solely because they are participating in State-approved marijuana programs. Providers need to make decisions to modify treatment plans based on marijuana use on a case-by-case basis, such decisions need to be made in partnership with the Veteran and must be based on concerns regarding Veteran health and safety. (2) The prohibition on recommending, making referrals to or completing forms and registering Veterans for participation in State-approved marijuana programs.” Id.
[xiii] Veterans Health Administration, U.S. Department of Veterans Affairs (December 27, 2018), https://www.va.gov/health/aboutvha.asp.
[xv] Survey Shows Veteran Households Support Research of Medical Cannabis, The American Legion (November 2, 2017), https://www.legion.org/veteranshealthcare/239814/survey-shows-veteran-ho....
[xvi] Carolyn Clancy, Statement of Dr. Carolyn Clancy, M.D. Interim Under Secretary for Health Veterans Health Administration (VHA) Department Of Veterans Affairs (VA) Before The Committee On Veterans’ Affairs United States Senate (March 26, 2015), https://www.veterans.senate.gov/imo/media/doc/VA%20Clancy%20Testimony%20....
[xvii] Bohnert, Ilgen, Galea, McCarthy, Blow, Accidental Poisoning Mortality Among Patients in the Department of Veterans Affairs Health System (April 2011), https://www.ncbi.nlm.nih.gov/pubmed/21407033.
[xviii] James Clark, A Well-Kept Secret: How Vets And Their Doctors Are Getting Around The VA’s Medical Marijuana Policy, Task & Purpose (October 26, 2017), https://taskandpurpose.com/va-medical-marijuana-policy-veterans.
[xix] AR 135-178 Chapter 12-1d discusses discharge for abuse of illegal drugs or alcohol.
[xx] UCMJ Article 912.a also applies to; (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) Any other substance not specified in 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).
[xxi] Owning Marijuana Company Stocks Could Endanger Your Security Clearance, Military.com, https://www.military.com/money/personal-finance/owning-marijuana-company....
[xxii] Medical Marijuana and the Military, https://www.ucmj-defender.com/marijuana-legalization-and-military/.
[xxiii] Tri-Care Facts and Figures, https://www.tricare.mil/About/Facts.
[xxv] Leo Shane III, Can Medical Marijuana for Veterans Move Forward in 2019?, Military Times (December 28, 2018), https://www.militarytimes.com/news/pentagon-congress/2018/12/28/can-medi....
[xxvi] Tom Angell, Senate Bill Would Legalize Medical Marijuana for Military Veterans, Forbes (September 5, 2018), https://www.forbes.com/sites/tomangell/2018/09/05/senate-bill-legalizes-....
[xxvii] Justin Strekal, The Congress Just Failed our Nation’s Veterans When it comes to Medical Marijuana, The Hill (September 12, 2018), https://thehill.com/opinion/healthcare/406352-congress-just-failed-our-n....
[xxviii] Tom Angell, V.A. Doesn’t Understand Marijuana Laws, So Veterans Lose Access, Marijuana Moment (November 15, 2017), https://www.marijuanamoment.net/v-doesnt-understand-marijuana-laws-veter....
[xxix] Tom Angell, Senate Approves Medical Marijuana for Military Veterans and Advances Hemp Legalization, Marijuana Moment (June 25, 2018), https://www.marijuanamoment.net/senate-approves-medical-marijuana-for-mi....
[xxx] Tom Angell, First Marijuana Reform Bill Clears Congressional Committee, Marijuana Moment (May 8, 2018), https://www.marijuanamoment.net/first-marijuana-reform-bill-clears-congr....
[xxxi] Patricia Kime, VA Comes Out Against Bills on Medical Marijuana for Veterans, Military.com (May 2, 2019), https://www.military.com/daily-news/2019/05/02/va-comes-out-against-bill...
[xxxii] NJCBA Leadership Team, New Jersey Cannabusiness Association, https://newjerseycannabusiness.com/board.
[xxxiii] Leo Bridgewater, The Cannabis Reporter, https://www.thecannabisreporter.com/leo-bridgewater/.
[xxxiv] About Us, Minorities 4 Medical Marijuana, https://minorities4medicalmarijuana.org/about-us.
[xxxv] Jo Ciavaglia, Matt Bellina is the face of the “Have A Heart” Foundation’s fight for the Right to Try and raising Funds for ALS Research for a Cure! Have a Heart NAC Foundation, https://myrighttotrynow.com/2017/08/matt-bellina-the-face-of-right-to-try/.
[xxxvi] Payton Guion, N.J. Veterans Can't Get Marijuana through VA Doctors. This Measure Could Change That, NJ.com (June 28, 2018), https://www.nj.com/marijuana/2018/06/nj_veterans_could_soon_see_their_va....
[xxxvii] Veterans and Medical Cannabis, Americans for Safe Access (July 2014), https://www.safeaccessnow.org/veterans-cannabis.