of his duties. It also excuses the prosecutor and other court personnel who "possess" the drugs during
the course of a trial. Similarly, certain of the drugs listed under this Article may be lawfully possessed
pursuant to a valid prescription for medical treatment. This is true of many pain killers, which are
opium derivatives. Part IV, MCM 1984, para 37(c) (5).
Section (b) (1) of Article 112(a) sets out specific drugs which are covered. This subsection lists all
the more commonly used drugs found on military installations and, to cover the field, language is added
to include "any compound or derivative of any" of those drugs to ensure that nothing was omitted;
however, Congress also inserted subsection (b) (3), which prohibits dealings in any substance which is
listed under the authority of the Controlled Substance Act. Recognizing the inventiveness of the soldier,
Congress also allowed for an easy way to prohibit new, dangerous drugs, as they become available.
When faced with such a situation, the President can publish a separate list of prohibited drugs,
substances or any compound or derivative thereof.
A. Possession.
The term "possess" means to exercise control of something. Possession may be direct
physical custody, such as 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 a car to which the person can return and retrieve the item.
Possession under the Article must be knowing and conscious. Part IV, MCM 1984, para
37(c) (2). In one case, the accused had not used a jacket since March and had loaned it to a friend in
May. A minute amount of marijuana was discovered in a pocket in October. Under these facts, the
court was not convinced beyond a reasonable doubt that the possession was knowing and conscious.
U.S. v. Ludlum, 20 MJ 954 (AFCMR 1985). For example, if a soldier borrowed a friend's car and
upon entering a military installation was searched. This search revealed a bag of marijuana under the
car seat. In order to successfully prosecute this soldier for wrongful possession of marijuana, the
government would have the burden of proving beyond a reasonable doubt that the soldier knew that the
drugs were under the car seat.
The term "possession" by its very nature includes the power or authority to prevent 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. Again, an accused may not be convicted of wrongful possession
of a controlled substance if the accused did not know that the substance was present under his control.
The accused's awareness of the presence of a controlled substance may be inferred from circumstantial
evidence. Part IV, MCM 1984, para 37(c) (2).
The defense of innocent possession will apply if the accused briefly possesses the drugs in
order to turn them over to the police. If his intent is to return the drugs to the owner, his purpose is
unlawful, and he can be found guilty of possession. U.S. v. Kunkle, 23 MJ 213 (CMA 1987). In one
case, the accused argued that he discovered illegal drugs in his SCUBA diving
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