United States v. Pugh
17-0306/AF
| C.A.A.F. | Nov 7, 2017Background
- Appellant, an Air Force Major, was convicted by a panel of willful dereliction for consuming Strong & KIND protein bars containing hemp seeds, in violation of AFI 90-507 para. 1.1.6 (prohibiting ingestion of hemp-seed products under the Air Force Drug Testing Program).
- The military judge reserved ruling on Appellant’s pre-sentencing motion to dismiss the charge as based on an unlawful order, allowed sentencing to proceed, and the panel adjudged dismissal.
- Before record authentication the military judge granted the motion to dismiss, finding AFI 90-507 overly broad as applied to commercially regulated, FDA-approved hemp food products that contain negligible THC and therefore do not threaten drug-test integrity.
- The Government appealed under Article 62, UCMJ; the Air Force Court of Criminal Appeals reversed and reinstated the conviction; Appellant sought review by this Court of Appeals for the Armed Forces.
- The military judge’s factual findings included that commercially available hemp food products (e.g., Strong & KIND) sold in the U.S. contain vanishingly small THC levels and would not trigger the Air Force’s drug-testing cutoff; the record includes expert testimony supporting that conclusion.
- The Court considered whether AFI 90-507 has a valid military purpose and whether it is sufficiently narrow as a lawful order when applied to FDA‑approved hemp food products.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AFI 90-507 serves a valid military purpose and is a lawful order as applied to FDA‑approved hemp food products | AF (Government): A blanket ban is necessary to protect the integrity and reliability of the Air Force Drug Testing Program | Appellant: The AFI is overbroad as applied to commercially regulated hemp food products that do not contain THC at levels detectable by the testing program | The AFI may serve a valid military purpose generally, but is overbroad and unlawful as applied to legal, FDA‑approved hemp food products that cannot cause positive drug tests; conviction reversed and charge dismissed |
Key Cases Cited
- United States v. Buford, 74 M.J. 98 (C.A.A.F. 2015) (standard of review for Article 62 appeals)
- United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004) (deference to military judge’s factual findings)
- United States v. Sterling, 75 M.J. 407 (C.A.A.F. 2016) (lawful order must have valid military purpose and be clear, specific, narrowly drawn)
- United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (overbreadth analysis focuses on specific conduct at issue)
- United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (evaluate order’s scope relative to conduct and purpose)
- United States v. Bickel, 30 M.J. 277 (C.M.A. 1990) (drug use harms military effectiveness)
- United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (example of an overbroad military order)