CAAF decides Power Bars should not get you court-martialed, reversing the Air Force Court of Criminal Appeals.
In August, I posted a blog about the Air Force Court of Criminal Appeals decision in United States v. Pugh. See https://courtmartial.com/can-power-bars-get-court-martialed/. Major Pugh was charged with use of drugs, and willful dereliction of duty by consuming Strong and Kind bars, both of which contain hemp seeds, in violation of AFI 90-507. Major Pugh was ultimately convicted of violating Article 92, UCMJ due to the violation of AFI 90-507.
Following the trial, however, the military judge granted a defense motion to dismiss the charge. The judge determined “that there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The government then appealed the decision to the Air Force Court of Criminal Appeals (AFCCA). On appeal, the AFCCA reversed the trial judge, and reinstated the conviction. The court found that since it was possible for Kind or Strong bars with hemp seeds to lead to a “false positive” on a drug screen, there was a valid purpose in prohibiting its use by members of the Air Force.
As I stated in my prior blog, I found this decision from the AFCCA troubling and I was anticipating a reversal by the Court of Appeals for the Armed Forces (CAAF). Luckily, CAAF did just this two days ago on 7 November 2017. The CAAF ruled that the military cannot ban properly labeled food products well regulated by the United States government using the rationale that they are protecting servicemembers from illegal (not properly labeled) substances. The court found the AF regulation to be overbroad “because Appellant’s act of consuming Strong & KIND bars cannot interfere with the Air Force Drug Testing Program.” As I stated in my last blog, this is an example of the military trying to get too involved in service members’ individual lives.
Major Pugh did not give up when the AFCCA reversed the military judge’s decision, he pursued his case up to CAAF. It paid off for him as it has for some of my clients. I have a great deal of experience arguing in front of all the military appellate courts to include CAAF. In fact, I argued in front of CAAF just yesterday. If you have a valid appeal it is important to pursue it. The CAAF is certainly willing to reverse a decision of the lower courts if it is justified.
If you or your loved one believes there is a valid court-martial appeal worth pursuing, don’t trust your issue to just anyone. Call someone with experience. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.