How To Fight A Positive Military Drug Test?

How To Fight A Positive Military Drug Test?


The military personnel are never an outsider to repeated drug tests after holidays or a period of absence.

There are a few methods to fight a positive military drug test. One way is to prove that the service member has unknowingly ingested drugs. Drug abuse may result in an administrative discharge. The service member may also encounter a court-martial. See our table of contents for more details.

When notified of the positive result, avoid making statements about it to anyone. Get yourself a  lawyer to handle it in your defense. 

Table of Contents:

Military Drug Testing

The military service is one of the only jurisdictions in the country that can criminally prosecute drug cases tested solely on a urinalysis test every once a year or due to a failed drug test. The National Guard and Reserve units' military civilians must have drug tests once, every two years. Therefore, nearly 600,000 officers in the United States undergo drug tests conducted each month by the military.

How Accurate Are Military Drug Tests?

Military drug tests are mostly 99% accurate as they pass through a series of screening processes to confirm drug metabolites in the candidate's body. Certain procedures are involved during the military drug test:

  1. Initially, the service members write their names or initials on the label of their containers. The collection process takes place under strict supervision. An observer is present when the donor urinates into the container and hands it over to the test administrator.
  2. The containers are boxed into batches, and the test administrator commences with the chain-of-custody document for every batch. A chain-of-custody is a written record of the people involved through the process (from giving away the containers to the service members, sample collection, batching, packing, and shipping). All those involved have to sign this document.
  3. The samples are taken to the lab for drug screening. People who handle the samples in the lab also have to sign the chain-of-custody with their names and what they did with the sample.
  4. Immunoassay screening is done on the received samples and screened for the presence of drugs. The samples that test positive for the presence of drugs will undergo the same screening to prove accuracy.
  5. If both tests come out positive, gas chromatography/mass spectrometry will be performed to identify specific substances in the sample.
  6. If any particular drug is detected and below the predetermined threshold, it is reported as negative. Positive results will have drug traces equal to or above the predetermined threshold.

Military drug testing procedures are followed very strictly to achieve very accurate and precise results.

Can You Retake A Military Drug Test?

Individuals who would like to join the military can take a retest if failed the initial drug test. Recruits can reappear after 90 days since the last test, and this is at the discretion of the particular branch of the military service.

On the other hand, there may be no prerequisite that the Army, Air Force, Marine, or Navy must permit someone who had been tested positive for drugs to retest. Given that most applicants clear the drug screen during the first attempt, there needs to be a solid reason to allow someone who failed a drug test to take a retest.

The military used to have numerous reapplication rules for various drugs. However, under the current policy, an applicant has one chance to reapply for whatever drug(s) if found in their system.

Individuals who test positive on the drug test twice will be automatically disqualified from serving in any of the military branches permanently.

An active service member is not eligible to retake a failed drug test.

What Drugs Do Military Screen For?

Generally, drug screening was performed to detect MMJ, amphetamines, methamphetamines, and cocaine in the urine samples, but has been expanded to test all the drugs by the Department of Defense (DoD).

Drug abuse in the military has dropped significantly since the DoD implementation, being an aggressive drug testing policy. It is now considerably lower than drug mishandling rates among civilians. The drug urinalysis tests can check for a broad range of illicit drugs, including MMJ, AMP, MAMP, COC, THC, and PCP. However, the labs may do random spontaneous tests of other drugs in the samples as well.

Commanders also have the privilege to request certain urine specimens to be further checked for steroids and other drugs. Some over-the-counter cold medications and dietary supplements may mimic the chemical structures of certain substances and turn positive. In such cases, more sensitive tests are done to identify and differentiate medications and illicit substances.

What Type Of Drug Tests Do Military Conduct?

When an individual gets notification regarding a drug test, they must provide a urine sample within two hours. Each department typically assigns urinalysis collection responsibilities to a trusted, reliable individual as a collateral duty. This individual is accountable for ensuring an accurate and recorded documentary collection, packaging, and shipping process.

The collected and packaged urine samples are then shipped to a designated DoD urine testing laboratory. At these laboratories, the urine specimens are tested using advanced techniques. If a sample is positive, the result is reported to the member's command for successive disciplinary action. There are different bases that the military depends on for urine sample collection, and this dictates the manner the command can utilize any positive test results.

Common bases for military urinalysis collections are listed below:

  1. Random Urinalysis:  Military members may be chosen randomly at any time of the day to provide a urine sample. The selection process is done through a computer program or randomly picking names through basic techniques. If any service member tests positive, the military may use the result for action under the administrative or Uniform Code of Military Justice (UCMJ).
  2. Probable Cause Urinalysis:  Suppose a commander has a rational belief that a service member used drugs; in that case, the commander may authorize urinalysis collection. If the service member tests positive, the military may use the result for UCMJ or administrative action.
  3. Consent Urinalysis: A military member may be asked to take a urine drug test voluntarily. Service members can reserve their right not to consent to provide a urine sample. If a member consents to providing a urine sample and subsequently gets a positive result, they may use the result for UCMJ or administrative action.

How Long Does It Take For The Results To Come Back In The Military Drug Test?

The drug test results are often posted on web portals for program managers. The negative results come back within 1 to 3 days, and positive results take a bit longer, about 3 to 5 days from the time the lab receives the specimens.

What Happens When You Fail The Drug Test In The Military?

If a service member fails a military drug test, they will be subjected to disciplinary or administrative action and even court-martial. It is advisable to get an attorney to defend yourself during the court-martial.

Most commonly, drug cases are resolved through administrative processing for separation. The Air Force tends to litigate more prosecutions at courts-martial than the other branches. If you are bound to face an executive separation board, defense counsel's experience can be vital. The resources in an administrative separation case for expert assistance from a chemist or toxicologist are always unavailable.

The defense counsel's attorney must appropriately cross-examine a government toxicologist.  Also, the lawyer must educate the members of an administrative separation board on the science present behind every drug test. The decision to prosecute a drug test or urinalysis case can also be heavily personified and dependent on the command. There are specific units that are excessively aggressive in prosecuting in the instances of urinalysis. A commander has several privileges to take action against positive drug crimes.

Court-martial protocols are complex, and the Military Rules of Evidence apply to them. Nonjudicial punishment procedures are relatively simple. The reservists may not receive nonjudicial punishment under Article 15 for drug use unless on federal duty. The reserve component personnel may be involuntarily recalled to activate the duty for nonjudicial punishment only concerning the offenses committed.

How To Fight A Positive Military Drug Test?

There are a few ways to fight a positive military drug test. The most common defense is to prove the substance in question was ingested unknowingly. The government must provide adequate evidence against the defendant to prove the positive result was due to conscious ingestion of the illicit substance. If a service member consumes an illicit substance inadvertently, it is not considered wrongful conduct and may be viewed as an innocent ingestion defense.

The other possibility is the mishandling of drug samples. There have been cases of mislabeling, mistakes related to personal identifying information, testing errors, etc. Sometimes, the samples may be retested. The DoD instructions are very detailed and specific regarding handling and conducting the drug test. Any deviation from these instructions may question the accuracy of the results.

Other scenarios such as self-medication, post-traumatic stress disorder (PTSD) are also the most common cases. There are instances where service members can self-medicate for pain, anxiety, or other conditions. These medications may sometimes surface as illicit drugs leading to positive results. Hence, hiring an experienced civilian defense counsel may prove beneficial in assisting a service member charged with a drug crime in the military.

Final Words

Getting into the military is reputable and laudable. That being said, you should keep yourself away from drugs so that your drug test may not shackle your military career. It will be better to buy some home drug testing kits to test yourself in advance to face the military drug test with confidence.

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